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Judgments of Supreme Court of India and High Courts

Hardeep Singh vs Paramjeet Kaur on 11 February, 2020

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH

FAO No.5472 of 2018 (OM)
Date of decision: 11.02.2020

Hardeep Singh ..Appellant

Versus

Paramjeet Kaur ..Respondent

CORAM: HON’BLE MRS. JUSTICE DAYA CHAUDHARY
HON’BLE MRS. JUSTICE MEENAKSHI I. MEHTA

Present: Mr. Rajiv Joshi, Advocate
for the appellant.

Mr. P.P.S. Tung, Advocate for
Mr. G.S. Toor, Advocate
for the respondent.
***
Daya Chaudhary, J.

Appellant-Hardeep Singh is aggrieved by judgment dated

04.07.2018 passed by learned Additional Civil Judge (Senior Division)-

cum- Guardian Judge, Ludhiana, whereby petition filed under the Guardian

and Wards Act and Hindu Minority and Guardianship Act, 1956 for the

custody of minor child, namely, Satnam Singh Samra, has been allowed

partly.

The appellant filed a petition before learned Additional Civil

Judge (Senior Division)-cum-Guardian Judge, Ludhiana stating therein that

marriage between the parties was solemnized on 28.09.2003. Three children

i.e. two daughters and one son, namely, Noorpreet Kaur, Harmanpreet Kaur

and Satnam Singh Samra, respectively, were born. Some differences arose

between the parties and both the female children were residing with their

father Hardeep Sngh and son was residing with mother-Paramjeet Kaur. It

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was also mentioned in the petition that respondent-wife was having illicit

relations with some other person and the minor son was not being looked

after properly, which had affected the upbringing as well the education of

the child. It was also alleged that the minor was being neglected whereas for

having custody of minor child, his welfare was required to be taken into

consideration. The petition filed by the appellant-Hardeep Singh was partly

allowed vide order dated 04.07.2018 by giving visitation rights.

Aggrieved by said judgment, the present appeal has been filed

by raising various grounds.

Learned counsel for the appellant submits that the welfare of

the minor child has not been taken into consideration as there was specific

allegation regarding negligence on the part of respondent-wife. Learned

counsel further submits that neither the respondent-wife chose to contest the

proceedings nor any reply was filed. In absence of appearance of the

respondent-wife, an adverse inference should have been drawn against her

and claim of the appellant should have been considered. Learned counsel

also submits that the Guardian Court should have considered that the minor

child has a right to meet his siblings, who are in care and custody of

appellant-father.

Learned counsel for the respondent has opposed the

submissions made by learned counsel for the appellant by stating that the

detailed speaking order has been passed and there is no infirmity in the

impugned judgment. A specific finding has been given that the respondent-

mother is taking care of the minor son and it cannot be said that the welfare

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of the minor child has not been taken care. The visitation rights have been

granted to the appellant-father.

Heard arguments of learned counsel for the parties and we have

also perused the impugned judgment as well as other documents available

on the file.

Facts of the case are not disputed. Both the parties are having

three children i.e. two daughters and one son. Both the daughters are

residing with appellant-father and minor son is residing with respondent-

mother. It has not been mentioned that how the welfare of the minor son

cannot be taken care by the respondent-wife.

The role of the mother in the development of child’s personality

cannot be doubted. The company of the mother is the most natural thing for

a child so long as the mother does not suffer from any disqualification. It is

only in such circumstances when she is unable to take care of the child due

to financial restraints, otherwise the wife is having love and affection,

which is necessary for care and bringing up of the minor child. The

company of the mother is always full of love and affection and it cannot be

said in any manner that the interest of the minor child is not being looked

after. No doubt the company of both parents is required for the proper care

and development of the personality of the children but in case, some

differences arose between the parties, which are unavoidable due to any

circumstances, it is necessary for the Courts to come to a judicial decision

by considering the question of welfare of the children. Simply by saying that

father is having more liking and child is being ignored by the mother cannot

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be a factor to have the custody of minor child.

It has been observed by Hon’ble the Apex Court in Rosy Jacob

vs. Jacob A. Chakramakkal, AIR 1973 Supreme Court 2090 that in case of

conflict or dispute between the mother and the father about the custody of

their children, the approach has to be different. The children are not mere

chattels and they are not mere play-things for their parents. The prime

consideration is the welfare of the children so that they may grow up in a

normal balanced manner to be useful members of the society. In case of

dispute between the mother and the father, a balance is required to be

maintained, which is the requirement of welfare of the minor children.

In Division Bench judgment of the Karnataka High Court in

Chethana Ramatheertha vs. Kumar V. Jahgirdar, 2003(3) RCR (Civil) 52,

the following observations have been made in para No.25:-

“25. The role of the mother in the development of a

child’s personality and her ability to do so can never be

doubted. In fact, a child gets the best protection and

education only through the mother even in nature. It is a

most natural thing for any child to grow up in the

company of one’s mother. In fact the question always

should be as to whether a child should be deprived of the

company of the mother. Company of the mother is the

most natural thing for a child. That is what nature has

evolved over a period of generations. So long as the

mother does not suffer from any disqualification, she

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does not disentitle herself to bring up her child. It is only

because of her own misconduct or misdeeds or when she

is not in a position to take care of the child due to

reasons financially or otherwise, the custody should be

shifted from the mother. Neither the father nor any other

person can endow the same kind of love, affection, care

and sympathies to a child that as of a mother. Company

of a mother may be in fact much more valuable

particularly to a growing up female child and until and

unless there are compelling and justifiable reasons, a

child should not be deprived of the company of the

mother. The question is not so much as to whether father

or mother gets the custody of the child, but as to whether

the child should be deprived of the company of the

mother. In fact, it can be presumed as a proposition of

considerable weight and justification that the company

of the mother is always in the welfare of the minor child

until and unless the contrary is established. This

basically we think, should be the approach of any Court

while considering the question of granting the custody of

a minor child to either of the parents. The mother,

because of her position alone, scores over the father and

to alter this position, it calls for definite material

indicating the disqualification or disentitlement on the

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part of the mother vis-a-vis the adverse interest to the

child or the welfare of the child being put to jeopardy.”

While deciding the issue of custody of minor, the Court is to

see the welfare by considering it as first and paramount consideration and

not the legal right of any particular party. While making such order for

appointing a guardian for the person of minor, the test requires to see as to

what order and under what circumstances for securing the welfare and

happiness of the minor can be. It is to be seen as to with whom the minor

will be happy. It is also to be seen as to who is most likely to contribute to

the well-being of the minor and also as to who is likely to bring up and

educate the minor in the manner required to develop the entire personality,

worthy of living, keeping the interest, well-being and happiness of the

minor. The proper custody depends upon the circumstances, and in

particular, upon the minor’s position and prospects in life.

Hon’ble the Apex Court in Dhanwanti Joshi vs Mahadev

Unde, 1999(1) Femi-Juris CC 336 (SC) has held as under :-

” …The welfare of the child is not to be measured by

money alone nor by physical conform only. The word

`welfare’ must be taken in its widest sense. The moral

and religious welfare must be considered as well as its

physical well-being. Nor can the ties of affection be

disregarded.” … As to the “secondary” nature of

material considerations, Hardy Boys, J., of the New

Zealand Court said in Walker v. Walker and Harrison,

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(See 1981 N.Z. Recent Law 257) (cited by British Law

Commission, working paper No.96, para 6.10)…

“Welfare is an all-encompassing word. It includes

material welfare, both in the sense of adequacy of

resources to provide a pleasant home and a comfortable

standard of living and in the sense of an adequacy of

care to ensure that good health and due personal pride

are maintained. However, while material considerations

have their place they are secondary matters. More

important are the stability and the security, the loving

and understanding care and guidance, the warm and

compassionate relationship, that are essential for the full

development of the child’s own character, personality

and talents.”

In a case of custody of a minor child, the dominant factor for

consideration before this Court is the ‘welfare’ of the child, which cannot be

measured by money or by physical comfort alone. The word ‘welfare’ has to

be taken in its widest sense. The moral and religious ‘welfare’ of the child as

well as his physical well being and the tie of affection are not to be

disregarded.

In Gaurav Nagpal vs. Sumedha Nagpal, 2008(4) RCR (Civil)

928 holding that the paramount consideration is welfare of the child and not

right of parents under a statute, the law enunciated by the Apex Court was

summed up as under:-

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“(1) Grant of custody of minor child by court–

Though the provisions of the special statutes which

govern the right of the parents or guardians may be

taken into consideration, there is nothing which can

stand in the way of the Court exercising its parens

patriae jurisdiction arising in such cases.

(2) Father is natural guardian, but for custody of child

paramount consideration is as to what is conducive to

welfare of minor.

(3) When conflicting demands are made by parents,

court then should not give emphasis on what the parties

say – Court has to exercise a jurisdiction which is aimed

at welfare of minor.

(4) Children are not mere chattels nor are they toys for

their parents.

(5) Even if father loved the children and was not

undesirable person would not necessarily lead to

conclusion that welfare of children would be better

promoted by granting custody of children to father.

(6) In considering the question of welfare of minor, due

regard has of course to be given to the right of the father

as natural guardian but if the custody of the father

cannot promote the welfare of the children, he may be

refused such guardianship.”

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Similarly, Hon’ble the Apex Court in Mausami Moitra

Ganguli vs. Jayant Ganguli, (2008) 7 SCC 673 has observed as under: –

“19. The principles of law in relation to the custody of a

minor child are well settled. It is trite that while

determining the question as to which parent the care and

control of a child should be committed, the first and the

paramount consideration is the welfare and interest of

the child and not the rights of the parents under a

statute. Indubitably the provisions of law pertaining to

the custody of a child contained in either the Guardians

and Wards Act, 1890 (Section 17) or the Hindu Minority

and Guardianship Act, 1956 (Section 13) also hold out

the welfare of the child as a predominant consideration.

In fact, no statute, on the subject, can ignore, eschew or

obliterate the vital factor of the welfare of the minor.

20. The question of welfare of the minor child has again

to be considered in the background of the relevant facts

and circumstances. Each case has to be decided on its

own facts and other decided cases can hardly serve as

binding precedents insofar as the factual aspects of the

case are concerned. It is, no doubt, true that father is

presumed by the statutes to be better suited to look after

the welfare of the child, being normally the working

member and head of the family, yet in each case the

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Court has to see primarily to the welfare of the child in

determining the question of his or her custody. Better

financial resources of either of the parents or their love

for the child may be one of the relevant considerations

but cannot be the sole determining factor for the custody

of the child. It is here that a heavy duty is cast on the

Court to exercise its judicial discretion judiciously in the

background of all the relevant facts and circumstances,

bearing in mind the welfare of the child as the

paramount consideration.”

In the present case, all the factors have been taken into

consideration and a detailed speaking order has been passed. It cannot be

said in any manner that the findings are perverse or stand of the appellant

has not been taken into consideration. Although there are allegations of

adultery but the same have not been proved. Minor son is residing with the

respondent-wife since the time of separation of the parties. Moreover, two

minor daughters are already residing with the appellant-husband.

Accordingly, keeping in view the facts as well as the ratio of

judgments as discussed above, we find no merit to interfere with the

impugned judgment and the present appeal is hereby dismissed. However,

keeping in view the interest of children and the parties, the appellant-

husband along with both the daughters is given visitation rights to meet the

minor son once in a month i.e. second Sunday of every month between

2:00 pm to 5:00 pm in a nearest Mall to the house of the respondent-wife in

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Ludhiana. It is also directed that the respondent-wife will not prevent the

child from receiving any gift that may be given by the appellant-husband. In

addition to visit, which is once in a month, the appellant-father along with

both the daughters is also at liberty to meet the minor son on festival like

Raksha Bandhan, Diwali and Holi.

(DAYA CHAUDHARY)
JUDGE

11.02.2020 (MEENAKSHI I. MEHTA)
neetu JUDGE

Whether speaking/reasoned Yes

Whether Reportable Yes

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